Trial of wife-killing case by extubation in Shenzhen

On February 7, 2009, Wen was criminally detained by Shenzhen Futian District Public Security Bureau. On March 4, with the approval of the Futian District People's Procuratorate, Shen Gong Futian Branch formally arrested Wen on suspicion of intentional homicide, and the prosecution prosecuted Wen for intentional homicide. The court of first instance found Wen guilty of intentional homicide and sentenced him to three years in prison and suspended for three years. In this regard, the Shenzhen Procuratorate lodged a protest with the Shenzhen Procuratorate for the crime of intentional homicide. The second instance was heard by the Guangdong Provincial High Court.

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Wen's defense lawyer believes that according to the analysis of forensic experts, his brain death is irreversible, which means that whether Wen extubates has no effect on his death. Although Wen's behavior constitutes the basic elements of the crime of intentional homicide, its behavior is less harmful to society, and its subjective intention is to love his wife and not let her suffer, so its subjective malice is less. Wen has two children to support, and they have turned themselves in. I hope the court can lighten, reduce or exempt Wen from criminal punishment.

Finally, Wen said that he regretted his behavior and would support his mother-in-law until she was old and reassure her. In addition, he also asked the court to consider children.

Situation, let him go out as soon as possible to do his father's duty.

Incidental litigation

After the criminal investigation, the court conducted an incidental civil investigation. The plaintiff, Ms. Xiao, entrusted two lawyers from Wuhan and Shenzhen to claim compensation from the defendant Wen and his family for funeral expenses, mental damages, lost time, transportation expenses, alimony and death compensation, totaling about 6,543,800 yuan. The defendant said that this amount was unacceptable. The two parties finally indicated that they could conduct out-of-court mediation on the amount of compensation.

Defendant Wen's lawyer believes that the criminal trial is not over yet, and the relevant civil compensation can only be carried out after the criminal conviction is established.

Focus of trial

1. Can the family members of brain-dead patients extubate?

During the trial, Wen's defense lawyer specially invited Chang Lin, a professor at the Institute of Evidence Science of China University of Political Science and Law, as an expert assistant to defend in court.

Professor Chang Lin said that brain death has been conclusive in medicine, but at present it is more ethical controversy. According to the draft of brain death standard of Ministry of Health in 2003, Hu Jing meets the standard of brain death.

He thinks that heartbeat and breathing are interdependent, while Hu Jing's breathing and cardiac arrest lasted for 65,438+00 minutes without spontaneous breathing. Once she leaves the ventilator, she can't breathe and her heart will stop. In particular, Hu Jing's brain center was seriously damaged, and his brain function was completely lost, so it was impossible to recover. It is only a matter of time before her heartbeat disappears, and brain death, that is, death, can be admitted.

The appraisal conclusion of the public security organ is that the victim Hu Jing died of respiratory arrest after the tracheal intubation was pulled out. Professor Chang Lin said this conclusion was inaccurate and misleading, so he disagreed. However, he also admitted that the standard of brain death has not been implemented by the Ministry of Health, and there is currently no legislation in China to confirm it.

As for Hu Jing's death, Bin Luo and Liu Jing, forensic experts of Sun Yat-sen University, also believe that Hu Jing's brain lesions will lead to circulatory and respiratory disorders, which in turn will lead to respiratory and cardiac arrest. Judging from this situation, it will lead to brain dysfunction and loss, and the treatment is basically unsuccessful.

The prosecutor argued that the standard of brain death was not defined in clinical standards, judicial practice or legislative confirmation. Even if the standard is defined, Hu Jing has not been checked and confirmed. Therefore, as far as the current clinical death standards are concerned, that is, heartbeat death and respiratory death, Hu Jing did not die before being extubated, and Wen has no right to deprive her of her life whether she is on the verge of death or not. His extubation led to Hu Jing's death and he should bear legal responsibility.

After the verdict was pronounced in the first instance, the Shenzhen Procuratorate considered that the sentence was extremely light and put forward three reasons to protest against the verdict in the first instance. First, it is wrong to determine that the case is "minor"; The second is to determine that the defendant's motivation for extubation is wrong; Third, although the defendant has surrendered himself and actively compensated for economic losses, the social effect of probation is not good. On March 2012 14, the case of Wen extubation killing his wife was heard in the second instance of Shenzhen Intermediate People's Court, and the Guangdong Provincial High Court sent staff to hear it.

The trial lasted about two and a half hours, during which the prosecutor and the defender were tit for tat and had a heated debate on the facts ascertained in the first instance and the sentencing.

Focus 1 Is there a mistress?

The prosecution believes that all kinds of evidence are enough to prove that Wen is unfaithful to his wife, and the motive for committing the crime is not to make his wife suffer.

The evidence presented by the prosecutor showed that Wen often talked to another young woman on the phone while his wife was sleeping. According to the mobile records, the talk time between them is sometimes 1 hour, and the longest is even more than 3 hours, and it is often in the middle of the night. When Wen was detained in the detention center, the woman sent many ambiguous messages to Wen. Therefore, the prosecutor believes that their relationship has gone beyond the scope of ordinary friends, indicating that Wen is unfaithful to his wife.

In this regard, Wen argued that he and the woman are ordinary friends and have just known each other for three months. They get along well because of the need of work. Those long phone calls were all from that woman to enlighten and comfort her. Regarding ambiguous short messages, Wen said that he was already in the detention center at that time, and he was puzzled to see these short messages afterwards.

Wen's defense lawyer believes that these ambiguous information can only explain the woman's personal thoughts, and has nothing to do with Wen.

Is focus 2 understood by family members?

The procuratorate believes that although Wen compensated his family for 6.5438+0.28 million yuan, his family did not issue a letter of understanding for Wen, and then applied to the procuratorate for a protest. This shows that the close relatives of the victims have not reached an understanding with Wen, and social contradictions have not been alleviated.

Wen's defender said that when Wen's family paid the compensation of 6.5438+0.28 million yuan to the Shenzhen Intermediate People's Court, they had attached a condition that the Hu family would issue a letter of understanding, otherwise they would not have to pay the money to the Hu family. Since Hu Jia accepted 6.5438+0.28 million yuan, he should show his understanding of the text. In addition to Hu Jia, Wen He's children are also close relatives of the victim. Wen's daughter also wrote a letter of understanding for her father, asking the court to give Wen a lighter sentence and let her father return to them.

Wen's defender also presented a letter of understanding between Wen and his daughter as evidence in court. The prosecutor said that the letter of understanding was written by Wen's daughter, but her daughter is only 12 years old this year and belongs to a person with limited capacity. She lives with Wen and her family at present, so whether the evidence is established is still worth considering.

Focus 3: Should I be sentenced to probation or imprisonment?

The procuratorial organ believes that although Wen has surrendered himself and can actively compensate the economic losses of the close relatives of the victims, the first-instance judgment applies probation to Wen and the social effect is poor. The application of probation in this case has a great negative impact on social orientation. Saving lives, caring for each other, sharing weal and woe are the fine traditions of the Chinese nation. Wen's behavior has had a great impact on the fine tradition of husband and wife sharing weal and woe, and has brought great harm to the feelings of sympathy and help for the weak. Applying probation to it will have a serious negative impact on social orientation, which is not conducive to effectively playing the general preventive function of punishment.

The public prosecutor said that the first-instance judgment found that the case was a "minor case" in the crime of intentional homicide, which violated the principle of suiting crime to punishment. Although it has been identified that Hu Jing may be in a state of brain death, brain death has not been recognized by China's criminal legislation and judicial organs. Although Wen did not take the usual violent way and pulled out the tracheal intubation, it did not affect the subjective malignancy, because he was facing a patient with no resistance. The nature of a civil act is not a passive failure to fulfill the obligation of rescue, but a positive killing behavior.

From the analysis of the social harmfulness of this case, Wen should have taken care of the friendship between husband and wife when his wife was seriously ill and in urgent need of help, but ignored the dissuasion and killed her urgently. His behavior not only deprived others of their lives, but also caused their relatives to suffer greatly, which had a bad social impact. Although there is a plot of surrender, it cannot reduce several sentencing grades. The sentencing of Wen should be based on the initial penalty of 10 intentional homicide, and then consider the circumstances of surrender and compensation.

Wen's defender asked, is it necessary to send Wen to prison in order to show good social effects? At present, Wen takes care of a pair of children at home full-time. Under the care of their father, their academic performance has improved significantly and their lives have been stable. Wen has been in the detention center for two years, and he has received his due punishment. If he is now sentenced to fixed-term imprisonment and sent to prison, and his child loses the care of his father, it may not have a good result.

201March14th, the Guangdong Higher People's Court conducted the second trial of this case in Shenzhen. The public prosecutor raised the mistake of "three sentences suspended and three sentences" made by the court of first instance, and suggested that the court sentence Wen to fixed-term imprisonment of more than 10.

The second instance of Guangdong Higher People's Court held that extubation directly led to death and the crime of intentional homicide was established. Considering that Wen had surrendered himself, he actively sent Hu to the hospital after he became ill, and took good care of Hu Jin in the hospital. When the hospital confirmed that Hu was incurable, it impulsively extubated and upheld the original judgment according to law.

San Xiao's statement was not adopted.

On the afternoon of March 2012 14, the Guangdong provincial high court held a trial in the second instance of Shenzhen. The public prosecution agency said that Wen had an ambiguous relationship with a woman surnamed Zhang, and the sentence of "three suspended sentences and three suspended sentences" in the first instance was unreasonable. It is suggested that the court sentence Wen to more than 65,438+00 years in prison. In the court of second instance, the "Little Three" theory was not adopted by the court. The court held that although the text messages and call records showed that the two had out-of-range contact, from the text message records, it could only be concluded that "Little Three" Zhang sent a large number of ambiguous text messages, but the text did not respond, and the call records could not prove that the two had an affair.

The Guangdong Higher People's Court held in the second instance that Wen, the defendant in the original trial, forcibly dismantled the rescue facilities attached to his wife, knowing that her condition was too serious to be treated, and prevented the medical staff from giving first aid, resulting in her death, which constituted the crime of intentional homicide and should be punished according to law.

However, Wen's impulsive extubation behavior is less harmful subjectively and socially and belongs to "minor circumstances". After the copy is issued, if you can voluntarily surrender and confess your criminal facts, it should be considered as surrender, and the punishment can be mitigated according to law. Wen is a first-time offender with a good attitude of pleading guilty, fully compensating the economic losses suffered by the close relatives of the victims, and showing repentance. According to the law, it can be given a lighter punishment as appropriate, and Wen's probation will really not harm society again. The reasons for the procuratorial organ's protest request for revision of sentence cannot be established and will not be adopted. The facts ascertained in the original judgment are clear, the evidence is true and sufficient, the conviction is accurate, the sentencing is appropriate, and the trial procedure is legal.